Research On The Civil Liability Of Insider Trading In The Securities Market

The justice and efficiency are the two basic value orientation for securities market.Insider tradingdoes harm tothe legitimate rights and interests of normal investors at the micro and destroys the concept of justice at the macro,respectively.The Securities Law in 2005 clarified that the insider trading should be charged with the civil liability for damages.However,the lack of specific provisions on the realization of the civil liability of insider trading makes the judicial practice of insider trading civil compensation disoriented.In the long period of time,the cases on civil liabilities of insider trading are no successful all the time in China,until a new breakthrough—Guangda "Wulong" case.Although it is still controversial,the overall social response is good.The author explores and analyses the character,the recognition,the key components,the cause of the defense and the standard for compensation of the insider trading civil liability,so that original understanding and suggestions are put forward from the lack of legislation and realistic dilemma for judging,making the case identified and processing flow as the main line.In addition to the introduction and conclusion,the article is divided into three chapters.In the first chapter,the authorfirstly introduces the fundamental theory of the insider trading civil liability,including the connotation and character of the insider trading civil liability,considering that the insider trading civil liability is neither breach of contract nor the third kind of unique responsibility,which is a special tort liability.Secondly,the author analyzes the starting point of the insider trading civil liability-the recognition of insider trading behavior,carries out horizontal comparative study from American law,EU law and Chinese law,and has the discussion from the main body of insider trading,the scope of insider information,and the behavior of insider trading.We conclude that the main body of insider trading in our country is the people who know the insider information,including the natural person and the legal person,the insider information has the characteristics of non-openness,price influence,relevance and real specificity,and the behavior of insider trading includes four categories: "transaction type","suggestion type","leakage type" and "illegal acquisition type".In the second chapter,the author expounds the four aspects of key components of the insider trading civil liability,including tort,damage,subjective fault and causality.In the case of tort,the use of the subjective presumption of insider information is proposed.In the case of the facts of the damage,the author proposes that the system of accountability should be established,that is,insider's liability which is subject to availability raises to a certain multiple of the illegal proceeds.In the case of subjective fault,the auther analyzes the theory of fault attribution,puts forward the presumption of subjective fault,and negates the necessity of profit or avoidance.In the aspect of causality,the author firstly discusses the special causal relationship of insider trading civil liability,analyzes the rules of traditional tort law,and then compares the legal provisions of causality in the United States and Japan,and finally concludes that China should take causal principle of presumption,to reduce the burden of proof of the plaintiff and protect the interests of investors.In the third chapter,the author analyzes the defenses and the compensation for damages of the insider trading civil liability.We divide the defenses of the matter into defenses against insider trading and defenses against insider trading civil liability.In the compensation for damages,the author firstly analyzes the scope of the right holder of the damages and considers that the right holder should determine the reverse trader through the comparative analysis of the two models of the transaction relative and the trader.And then we analyze the calculation method of the amount of damage,and conclude that China should be learned from the reasonable time calculation method,and the punitive damages system should not be introduced.